We, the 55 undersigned organisations and trade union are shocked to hear
about the wrongful termination of Muhammad Zulfadlee Thye Bin Abdullah, the
President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja
Pekerja Infineon Technologies (M) Sdn Bhd) at INFINEON in Malacca, which is said
to be the largest assembly of INFINEON with a workforce of about 8000
people.Zulfadlee, an employee since
1998, has been the President of the Unionsince 2005.

INFINEON is a German Company that
produces, amongst others, electronic and auto components, which are said to be
used by major Brands including Apple, BOSCH, Philips, Microsoft, Hewlette
Packard, Dell and Continental.

On 13/12/2016, Zulfadlee was
terminated on the grounds that he ‘committed
the act of malingering’, with reference to a sick leave obtained on 18/10/2016
from a doctor, Dr Aw Cheng YewofKlinik Melaka, which is a panel clinic of the
Employer. The basis of the allegation seems to be because he was present at an
activity of the Selangor Division of the Malaysian Trade Union
Congress(MTUC)in Putrajaya on the same
date when he was on sick leave.As such,
one may assume that maybe the charge was simply pretending to be sick (or
faking illness) for the purpose of avoiding work or duty.

It must
be stated that the reason for termination used was not an employment misconduct
stated in INFINEON Technologies (Malaysia) Sdn. Bhd’s document entitled Policy
for Misconduct and Disciplinary.

Further,
the word ‘malingering’ is not a commonly used word, and as such many are
unaware of the meaning of that word. To compound matters, in this case, the
word ‘malingering’ allegedly was never even clearly explained to Zulfadlee,
whose mother tongue is the Malay language. When such English words are used in
a charges levied against a worker, and then not explained clearly, it will have
a tendency to be confusing and may result in injustice.

In law, Zulfadlee
was entitled to 22 days of paid sick leave every year, and it must be pointed
out that he was examined by a qualified doctor who concluded that he was entitled
tosick leave, and a medical
certificate was signed and issued by the said doctor. A sick leave is given
only when the doctor, after examining decides a worker is not medically fit to
perform his/her duties at work.

There was no question of Zulfadlee
lying or pretending to be sick, for on the subsequent day he went to see a
specialist doctor, who allegedly discovered that he had a stone in his bladder
and he was then given further sick leave for 3 days on 19/10/2016, 20/10/2016
and 21/10/2016. Despite being on sick leave, Zulfadlee did come to the office
for a few hours to do some urgent work on 2 of these days but he was not
charged for committing the ‘act of malingering’ for these days.

Being on a sick leave does notmean that one is to be confined at home and
bed rest, and cannot do any other things including also attending some union
meeting or activity – a sick leave only means that he is not medically fit for
work on the said day, and in law he becomes entitled to paid sick leave.

On 18/10/2016, Zulfadlee said that
he had no plans whatsoever to go to the Putrajaya union activity with his union
members who planned to go. It was only after he had obtained medical leave whilst
he was sending off the union members heading to Putrajaya, that he was convinced
by his fellow union members and suddenly decided to follow them in the bus.

Now, even if an Employer disputes
the Medical Certificate issued by the doctor, then the Employer should
reasonably have taken action against the doctor and/or the clinic – not with
the employee.It must be pointed out
that generally a panel clinic of the employer, are less likely to simply issue
Medical Certificates to employees unless the doctor is convinced that the said
worker is entitled to sick leave. In this case, the Employer really had no
reasonable basis to even suggest that Zulfadlee was ‘malingering’ or lied to
obtain the sick leave. In such health matters, the Employer is certainly not
competent – only the qualified doctor is.

We do not believe that any failings
of a doctor, if there even is, should ever be blamed on a worker, and certainly
not be used as justification for termination.

Further, attending or participating
in a union activity cannot and should never be an employment misconduct and/or
a breach of the employment contract.

ANTI-UNION ACTION & DISCRIMINATORY ACTION AGAINST UNION PRESIDENT

As such, we are of the opinion that
the termination of the Union President may really notbe because of an ‘act of malingering’ by an
employee, but simply a union busting action targeting the Union President and
the Union.

In INFINEON’s letter dated
6/1/2017, rejecting Zulfadlee’sappeal
against the termination it was stated, amongst others, ‘…The basis of our
decision was premised on the fact that the Management could not condone nor
mitigate punishments for a serious
act of misconduct committed by a Union President leading the employees
of Kesatuan Pekerja - Pekerja lnfineon Technologies Malaysia itwu,’ This letter
was signed by Lee Cheong Chee, the President & Managing Director of
lnfineon Technologies Melaka.

The
said letter, also did state, ‘…your illustrious career and contributions to the
Company has been well acknowledged through your progress during your tenure. While that may ordinarily be a mitigating
factor in considering any appeal, the Management has decided that theyour act of malingering is deemed to be
unacceptable and is aggravated in view of you being the Union President at the
point the act of misconduct was committed…’

Besides
Zulfadlee, 6 other members of the Executive Committee of the Union, including
the Vice President and the Secretary, were also targeted and subjected to
disciplinary action – and some of this had ended with a stern warning, whilst only
the Union President was terminated.

Considering
the fact that out of the 40 over employees that participated in the Union
program on 18/10/2016, and only the President and 6 of the Union leaders have
been subjected to disciplinary action, it certainly looks that INFINEONmaybe discriminating against employees who are leaders of the Union, and
maybe reasonably said to be an act of ‘union busting’.

The timing of these
disciplinary actions and the termination of the Union President, when the Union
and INFINEON is starting negotiations concerning the next Collective Bargaining
Agreement, whereby the first meeting is scheduled for 23/1/2017 is most
disturbing. Members of the Union will most likely be prejudiced by this.

It looks like the Employer’s
actions in this case was maybe to instill fear in the Union, its members and
other employees, which may affect the effectiveness of the trade union. These
actions of the Employer would impact on the duty and obligation of Unions to
fight for better rights and working conditions, highlight future wrongdoings,
and fight against violation of the worker rights. It is failure to recognize
and respectthe freedom of association.

The failure of this Union
and/or its members to openly protest the wrongful dismissal of the Union
President indicates that the Employer’s strategy to create a docile and
compliant union maybe working. It may also seriously affect the upcoming
Collective Bargaining Agreement to thedetriment of employees and Union members.

OBLIGATION TO UPHOLD WORKER AND UNION RIGHTS, AND FREEDOM OF
ASSOCIATION

INFINEON Technologies (Malaysia)
Sdn. Bhd.,a subsidiary of INFINEON, a German company, in this case seem to have
acted contrary to the INFINEON’s own policy and Code of Conduct, Organisation for Economic Co-operation and Development (OECD) Guidelines,
Electronic Industry Citizenship Coalition Code of Conduct, UN standards and
principles; and other relevant standards and good practices.

Brands and corporations that do
have INFINEON in their supply chain also have
the obligation to ensure that justice be done, and that Codes of Conducts or
Policies not be violated by reason of these action/s of INFINEON, vide it’s
Malaysian subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, including the
discrimination and the wrongful termination of the Union leader.

Justice demands that INFINEON
Technologies (Malaysia) Sdn. Bhd should immediately reinstate Zulfadlee without
electing to simply just wait for the long drawn out court process in Malaysia,
that could take even 5 - 9 years before court may award victory to a wrongfully
terminated worker. As such, unless INFINEON immediately reinstates Zulfadlee,
an employee of INFINEON for 18 years,great injustice would be done to this worker who has wrongfully been
deprived of his employment and income that is so needed for him and his family
to survive.

Unjust Malaysian laws at present,
states that if the worker cannot be reinstated, he will be awarded compensation
in lieu of reinstatement for just a maximum of 24 months, when previously this
compensation would have been payment of all income worker would have earned
from date of wrong dismissal until the date of judgment(or reinstatement). The
new amended limit is not anymore a deterrent for employers seeking to
wrongfully get rid of employees, especially worker leaders.

Further, in the case of a Union
leader, the chances of getting employment with any other employer, especially
in the same sector, is also most difficult compared to other workers.
Termination of strong Union leaders is grossly unjust to the Union and its
members. Without immediate reinstatement, great injustice will be done.

Therefore, we

Call for the immediate
reinstatement of Zulfadlee Thye Bin Abdullah, the President INFINEON
Technologies Workers Union;

Call for the immediate withdrawal
of disciplinary action/s against other Union leaders and/or members, and/or for
the revocation of any punishment that has already been handed out;

Call on INFINEON and its
subsidiary, INFINEON Technologies (Malaysia)
Sdn. Bhd, to respect and promote worker and trade union rights, and cease
discrimination against Union leaders, and also cease union busting activities.

Call on
Apple, BOSCH, Philips and other companies that has INFINEON in its supply chain
to immediatelyensure that INFINEON
respect the Freedom of Association of Workers, Worker and Trade Union Rights;

Call on
Germany to ensure that INFINEON comply with the OECD Guidelines, United Nations
andInternational Labour Organisation (ILO)
standards, principles and best practices, and other similar obligations to
ensure that human rights and worker rights are respected, protected and
promoted;

Call on INFINEON and INFINEON Technologies Melaka to respect and promote human rights,
including worker and trade union rights

Charles Hector

Syed Shahir bin Syed Mohamud

Mohd Roszeli bin Majid

Pranom Somwong

For and on behalf of the 55
organisations, trade unions and groups listed below

Sunday, February 26, 2017

UN special rapporteur seeks halt to execution of brothers

Published 25 Feb 2017, 3:23 pm
Updated 25 Feb 2017, 4:51 pm

The
United Nations Special Rapporteur on summary executions, Agnes
Callamard, has appealed for a halt to the execution of two brothers
convicted of a 2006 murder.

“To proceed with their execution would be in flagrant violation of
international standards for the application of the death penalty and
would be tantamount to an arbitrary execution,” the UN human rights
expert warned.

“There are strong indications that the death penalty may be carried
out against the Batumalai brothers following judicial procedures that do
not fulfil the most stringent guarantees of fair trial and due
process,” said Callamard, stressing that fundamental safeguards had not
been observed.

She based this on reports that the brother's claims were disregarded
by the court, which failed to call the dead man’s wife as a witness,
whose testimony may have corroborated theirs.

The police also reportedly failed to take blood samples and
fingerprints to establish any direct link to the accused brothers to the
crime.

Suthar Batumalai and B Ramesh Batumalai, were given the death penalty
in 2010 for their alleged involvement in a killing four years earlier.
During trial, both men pleaded innocent, and have maintained that they
intervened only to stop two other men who were attacking the victim.

Having exhausted all legal avenues of appeal, they were set to face execution yesterday.

A new clemency petition was submitted on Feb 23 for consideration by
the Negri Sembilan ruler, as the murder case occurred in the state, and
the Pardons Board.

Callamard said: “I urge the authorities to approve this clemency
request. The executions of the Batumalai brothers must be halted
immediately, and they should be re-tried in compliance with
international standards.”

The expert also warned against the mandatory use of the death penalty in Malaysia for various crimes, like murder.
“Legislation that leaves courts with no choice but to impose death
sentences for specific crimes violates various human rights standards.

A mandatory death sentence necessarily fails to take into account
mitigating circumstances that might otherwise show the specific crime to
be less serious,” she said.

The execution of the two brothers yesterday was put off, but is reported to have been rescheduled.

Double Execution in Less than 12 Hours Must Be Stopped, Amnesty International Malaysia SaysBrothers
Rames and Suthar Batumalai have less than 12 hours before they face the
noose if the authorities do not stop the execution in view of a pending
clemency application.The clemency application was submitted to the
Negri Sembilan Pardons Board today by Haresh Mahadevan & Co, and it
must be given time to review the application. The executions must not go
on, Amnesty International Malaysia Executive Director Shamini Darshni
Kaliemuthu said tonight. No executions must be carried out while appeals
are pending.

“Late last night, we learned that Rames and Suthar
were scheduled to be executed in Kajang Prison on Friday morning, which
mean they have less than 12 hours to live now. The family is distraught
and are appealing to the Yang Di Pertuan Negri Sembilan to spare their
lives. ,” she said.

The family of Rames, 44, and Suthar, 39, was
only informed yesterday that they should visit the brothers for the last
time today ahead of their execution “soon”. Amnesty International
sighted the letter.

Rames and Suthar were mandatorily sentenced
to death in April 2010 under Section 302 of the Penal Code after they
were found guilty of a murder committed on 4 February 2006. On 22
February 2017 the pair was moved from their separate detention
facilities to Kajang prison where the executions are set to take place
tomorrow. International law prohibits the use of the mandatory death
penalty.

“The death penalty can never be justified regardless of
the crime committed. The authorities must immediately take a step to
prevent this double execution,” Shamini said.

Amnesty
International believes that the brothers, who were represented at trial
by the same lawyer, were convicted on the basis of circumstantial
evidence alone. During the trial they claimed that they had intervened
to stop two other men from attacking and killing the deceased, claims
which were disregarded by the High Court. The Court also failed to call a
key witness, the deceased’s wife, to testify. Her testimony could have
corroborated the brothers’ version of the facts and the involvement of
the two other men in the murder.

“The 1984 UN Safeguards
guaranteeing protection of the rights of those facing the death penalty
provide that the death penalty be imposed ‘only when the guilt of the
person charged is based upon clear and convincing evidence leaving no
room for an alternative explanation of the facts’ and this has not been
made clear in this instance.”Amnesty International has issued an
Urgent Action to its global network to intervene on the executions and
is also appealing to the Ruler of Negeri Sembilan state to stop the
execution.The secretive nature of executions in Malaysia has
been consistently criticised by Amnesty International. Information is
hardly made publicly available on individual death penalty cases and
families are often informed merely days before that their loved ones
will be executed.“The lack of transparency around executions in
Malaysia is a violation of international law and standards. Families
must have sufficient time to prepare for the last visit and take any
further recourse available at the national or international level.”
Shamini said.There is no conclusive evidence that the death penalty has a unique deterrent effect on crime.“Amnesty
International Malaysia does not downplay the seriousness of crimes
committed, but we urge the authorities to consider introducing more
effective crime prevention measures that respect human rights instead of
continuously using one that has no merit. Amnesty International
Malaysia calls on the Malaysian government to put a stop to the double
execution and impose a moratorium on executions immediately with a view
to full abolition."______________________________

Wednesday, February 22, 2017

On 21/2/2017, Human Rights Defender, Lena Hendry, has been found GUILTY by the Magistrate Court, and another date was fixed for sentencing. The charge under Section 6(1)(b) of the
Film Censorship Act 2002 carries a jail term of up to three years or a
fine of up to RM30,000 or both if convicted..

Activist Lena Hendry
has been acquitted of the charge of screening a film on the Sri Lankan
killing fields, which had not been approved by the Censorship Board....
"The
magistrate has found that the prosecution has failed to prove a prima
facie case against her (Hendry) and has therefore acquitted her,...

But the government did not let go, and the prosecution appealed to the High Court...and on 21/9/2016, the High Court allowed the appeal, and

Judicial Commissioner Shariff Abu Samah set aside the Magistrate Court’s
order which acquitted Lena in March at the end of the prosecution’s
case...The High Court ordered Lena Hendry, an activist, to enter defence

Not sure whether there was an appeal to the Court of Appeal, but in any event , the trial at the Magistrate's Court continued, and Lena Hendry has now been found guilty...

Activist Lena Hendry disappointed over conviction

KUALA LUMPUR:
Activist Lena Hendry was convicted by a magistrate's court over the
charge of screening a Sri Lankan civil war documentary that had not been
approved by the Censorship Board.

Hendry, 32, who stood expressionless in the dock upon hearing the verdict, said she was disappointed with the judgment.

"We will definitely appeal. No proof to
convict me," Hendry, who was accompanied by her lawyer New Sin Yew, told
reporters here Tuesday.

Her well-wishers, friends and supporters surrounded her after the judgment, and they hugged and consoled her.

A supporter of her was holding a placard saying "Human Rights Documentaries are not dangerous".

One of those present in the public gallery
was Ivy Josiah, who is Hakam's (National Human Rights Society) exco
member and former executive director of Women Aid Organisation.

Josiah said she was disappointed over the ruling, saying that "the film had been shown everywhere in the world."

In his judgment, magistrate Mohd Rehan Mohd Aris ruled that the defence had failed to raise reasonable doubts in the case.

"The accused is found guilty," he told the packed courtroom.

Mohd Rehan ordered both parties to file their respective submissions and set March 22 for sentencing.

He also extended Hendry's bail of RM1,000 pending disposal of the case.

A High Court had on Sept 21, 2016 set
aside an acquittal order against Hendry and ordered her to enter her
defence over the charge.

In reversing her acquittal order, Judicial
Commissioner Mohamad Shariff Abu Samah found that there was a prima
facie case against Hendry.

Mohd Rehan had on March 10 last year
acquitted Hendry after ruling that the prosecution had failed to prove
the case against her at the end of their case.

A total of eight prosecution witnesses and three defence witnesses, including Hendry, had given sworn evidence in the trial.

Hendry, who was also the programme
coordinator for a human rights group Pusat Komas, claimed trial in a
magistrate’s court on Sept 19, 2013 to illegally screening the
documentary “No Fire Zone: The Killing Fields of Sri Lanka".

The film directed by British national
Callum Macrae explores the alleged oppression by the Sri Lankan
government of Tamils in the island nation.

She was said to have committed the offence
at the Kuala Lumpur and Selangor Chinese Assembly Hall at Jalan
Maharajalela here at 9pm on July 3, 2013.

The charge under Section 6(1)(b) of the
Film Censorship Act 2002 carries a jail term of up to three years or a
fine of up to RM30,000 or both if convicted. DPP Nurakmal Farhan Aziz
prosecuted the case

Suara
Rakyat Malaysia (SUARAM) finds the decision to convict Lena Hendry by
the magistrate court under Section 6(1)(b) of the Film Censorship
Board regrettable and flawed in nature.

The
absence of adequate evidence led to Lena’s initial accquital was
sound as there was a lack of evidence on part of the prosecution in
their charges. The subsequent conviction of Lena on 21st
February depart from this and utilized the flawed system in Malaysia
which undo the presumption of innocence that serve as the foundation
of any common law based criminal justice system. Convicting the
defense based on their inability to prove beyond reasonable doubt of
their innocence remains a blatant trangression against the right to
fair trial and Lena’s conviction marks another injustice by the
Malaysian criminal justice system.

On
top of the manifest injustice in her conviction, the attempt to
punish an individual for screening a documentary is reprehensible on
many levels. A documentary is often made to serve as a historical
record of an event that transpired and leaves a legacy or story that
can be viewed by the future generations. Censoring or preventing
documentaries from being screened does not protect the public but
only serve to protect select groups by hiding an inconvinient truth
and deprive future generations of important knowledge on history.

Furthermore
an attempt to punish an individual for allegedly screening ‘No Fire
Zone’ is contemptible to say the least as the act of preventing the
screening tantamounts to protecting those who may have committed
crime against humanity. if the Malaysian government seeks to protect
others against genocide and crime against humanity, why is it now
complicit in protecting those who may have commited crime against
humanity.

SUARAM
reiterate our strongest condemnation against the repression of
freedom of expression by the Malaysian government and stand in
solidarity with Lena Hendry in her fight for human rights and
democracy!

In
Solidarity

Sevan
Doraisamy
Executive Director
SUARAM

Malaysia: Convicted for Showing a FilmProsecution of Lena Hendry Violates Right to Free Expression(Bangkok, February 22, 2017) – A Malaysian
court’s conviction of rights activist Lena Hendry for her role in
showing a documentary film violates her right to freedom of expression,
Human Rights Watch said today. On February 21, 2017, a Kuala Lumpur
court found Hendry guilty of organizing a private screening of the
award-winning human rights documentary, “No Fire Zone: The Killing
Fields of Sri Lanka,” without censorship board approval nearly four
years ago. She will be sentenced on March 22, and faces fines and up to three years in prison.“It’s
an outrageous assault on basic free expression that Lena Hendry could
go to prison for helping to show a documentary film,” said Phil Robertson,
deputy Asia director at Human Rights Watch. “This prosecution is part
of the Malaysian government’s disturbing pattern of harassment and
intimidation of those seeking to raise public awareness of human rights
issues.”

Hendry, a former staff member of the human rights group
Pusat KOMAS, was convicted under section 6 of Malaysia’s Film
Censorship Act, which prohibits the “circulation, distribution, display,
production, sale, hire” or “possession” of any film, whether imported
or domestically produced, without first obtaining approval from the
government-appointed Board of Censors. Malaysia’s highest court rejected a constitutional challenge to the law in September 2015. A magistrate acquitted her of the charge in March 2016, finding that the government had failed to make a basic case showing her guilt. On September 21, 2016, the High Court reversed Hendry’s acquittal and ordered a resumption of the case after the government appealed.

Bringing
criminal penalties for possessing or privately showing a film without
government approval violates freedom of expression by imposing a
disproportionate burden on a fundamental right, Human Rights Watch said.

The Film Censorship Act is rarely invoked, and Pusat KOMAS
regularly screens films on politics, human rights, culture, and other
issues without censorship board approval, with admission by
pre-registration only.

The prosecution in this case appears to
have been motivated by the Malaysian government’s desire to appease Sri
Lankan embassy officials, who had publicly demanded that the film not be
shown and visited the venue on the day of the film’s showing to urge
the venue’s managers to cancel the event. “No Fire Zone” tells the story
of war crimes committed in the last months of Sri Lanka’s civil war in
2009, including Sri Lankan army shelling that indiscriminately killed
thousands of civilians and the extrajudicial executions of captured
fighters and supporters of the secessionist Liberation Tigers of Tamil
Eelam.

“The Film Censorship Act violates rights by giving the
government the power to arbitrarily suppress films it doesn’t want
Malaysians to see, and to prosecute those who dare to show them,”
Robertson said. “Malaysia should scrap this draconian law’s criminal
penalties, revise it to comply with international rights standards, and
allow Malaysian citizens to view films of their choosing.”

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